Recognition of a person’s right to a building does not necessarily confer ownership of the soil beneath it.

 

MOHAMED KALID SITTI FATHUMA AND OTHERS v. MOHAMED FAHIM WADOOD AND ANOTHER

 

SC Appeal No. 45/2017

CA Appeal No. 1178/98 (F)

DC Galle No. 8972/P

Supreme Court of Sri Lanka

 

Before: P. Padman Surasena, C.J.; Mahinda Samayawardhena, J.; and Arjuna Obeyesekere, J.

Judgment by: Samayawardhena, J.- Decided: 13 January 2026

 

Partition - Competing pedigrees - Paper title - Occupants claiming rights to superstructure - Claim of prescriptive title to an undivided one-half share - Whether prescription can operate in respect of an unidentified undivided share - Section 3 of the Prescription Ordinance - Burden of proof after establishment of documentary title - Possession commencing permissively or as licensee - Long possession - Payment of assessment rates - Need to prove adverse and independent possession - Starting point of prescription - Allegation of collusive partition action - Lapse of twelve years after execution of transfer deed - Importance of pleadings and properly framed issues.

 

BACKGROUND.

 

The plaintiff instituted a partition action in the District Court of Galle seeking to partition the land described in the schedule to the plaint between himself and the 1st defendant in equal shares.

The 2nd to 4th defendants were made parties because they occupied a house situated upon the corpus, shown as buildings Nos. 1 and 2 in the preliminary plan marked X. The plaintiff’s position was that those defendants possessed rights only in the superstructure, without any rights in the soil, and that the value of the building could be compensated at the partition.

The 1st defendant did not contest the plaintiff’s pedigree. On the contrary, he gave evidence and produced old title deeds supporting it.

The 2nd to 4th defendants filed a joint statement of claim setting out a different pedigree. They alleged that one Sulaiman Lebbe had owned an undivided one-half share and that such share had devolved upon them. However, they failed to explain or prove how Sulaiman Lebbe had acquired that alleged share.

In the final paragraph of their statement of claim, they advanced the additional contention that they had acquired prescriptive title to an undivided one-half share of the land. Their principal case at the trial was nevertheless based upon the alleged alternative pedigree rather than upon a clearly pleaded case of adverse possession.

The issue purportedly raised on prescription as issue No. 12 was vague and unintelligible. It did not state that the defendants had acquired prescriptive title to the whole land or to any specifically defined and identifiable portion.

The District Court accepted the plaintiff’s pedigree and held that the plaintiff and the 1st defendant had acquired title under deed P3. It rejected the alternative pedigree and the claim of prescription. The District Judge also accepted the evidence that the 2nd to 4th defendants had originally entered the land with the permission of the predecessors in title of the 1st defendant.

The Court of Appeal affirmed the judgment of the District Court. The 2nd to 4th defendants thereafter appealed to the Supreme Court, where they abandoned any claim founded on deed or inheritance and confined their case entirely to prescription.

Questions of law before the Supreme Court

Leave to appeal was granted principally on whether the Court of Appeal had erred:

In affirming the finding that the defendants were licensees when, according to them, there was insufficient evidence of the licence;

in failing to hold that their long possession, together with payment of assessment rates for the entire property, established prescriptive title;

In failing to recognize that the partition action was allegedly a collusive arrangement between the plaintiff and the 1st defendant intended to eject the 2nd to 4th defendants; and

In failing to hold that the twelve-year period between the execution of deed P3 and the institution of the partition action was itself sufficient to establish prescription.

 

 

Held

Appeal dismissed. Judgment of the Court of Appeal affirmed. No costs.

All four questions of law were answered in the negative.

1. Prescription cannot be claimed to an unidentified undivided share

A claim of prescriptive title cannot properly be made merely to an abstract or floating undivided one-half share of the corpus.

Prescription operates through actual possession. It must therefore relate to land that is physically ascertainable-a definite and identifiable portion over which the claimant has exercised the necessary adverse possession.

The defendants had not identified any defined portion of the land to which they claimed prescription. Their claim to an undivided one-half share was therefore legally misconceived.

 

2. The burden shifted after paper title was established

Once the plaintiff and the 1st defendant established documentary title under deed P3, the burden fell upon the 2nd to 4th defendants to prove the legal basis on which they continued to occupy the land.

Where an occupant relies upon prescription, it is for that occupant to prove every statutory element of prescription. The documentary owner is not required to disprove prescription or first establish conclusively that the occupant entered as a licensee.

 

There is no presumption that a person physically occupying another person’s property possesses it adversely.

 

3. Long possession is not necessarily prescriptive possession

The Court emphasized the distinction between:

long possession, which is merely possession continued over time; and

prescriptive possession, which is possession satisfying all the requirements of section 3 of the Prescription Ordinance.

The mere fact that a person has remained on land for ten, twelve or more years does not automatically create title.

 

The possession must be:

undisturbed and uninterrupted for the statutory period;

adverse to or independent of the title of the true owner;

exercised as of right;

accompanied by conduct inconsistent with the owner’s title; and

unaccompanied by any acknowledgment of the owner’s superior right.

 

 

 

4. Payment of assessment rates is not proof of title

Payment of municipal or local-authority assessment rates may be a circumstance to be considered with other evidence, but it does not by itself prove adverse possession.

Rates may be paid by an owner, tenant, licensee, relative, manager or any other occupant. Payment proves that the payment was made; it does not necessarily prove the character in which the payer occupied the property.

Accordingly, long occupation combined with payment of assessment rates was insufficient to satisfy section 3.

 

5. Permissive possession does not silently become adverse

Where possession commenced with the owner’s permission or in a subordinate character, such as that of a licensee, the possession is initially consistent with the owner’s title.

It cannot become adverse merely because time passes. The occupant must prove some clear and overt act showing that the permissive character was abandoned and that possession thereafter became hostile to, or independent of, the owner.

The defendants failed to identify such a starting point.

 

6. The partition action was not shown to be collusive

The mere fact that two co-owners institute or support a partition action for the purpose of ending co-ownership does not establish collusion.

Deed P3 expressly acknowledged the presence of the defendants’ house and transferred the land:

“exclusive of the superstructure of the wattle-walled thatched house bearing assessment No. 128/4, Colombo Road.”

That recital recognized the separate existence of the defendants’ superstructure. It was inconsistent with the suggestion that deed P3 and the subsequent partition action were fabricated as part of a collusive attempt to suppress the defendants’ interests.

 

7. Twelve years after the deed did not establish prescription

The defendants relied on the fact that the partition action was instituted approximately twelve years after deed P3.

The Court rejected the argument that this lapse of time was itself sufficient. The ten-year period prescribed by law must be a period of proven adverse possession, not merely a period during which the occupant remained physically present on the property.

Time is an essential ingredient of prescription, but time alone is not title.

 

Ratio decidendi

The decision establishes the following propositions:

Once documentary title is established, the burden lies upon the person relying on prescription to prove, strictly and affirmatively, all the requirements of section 3 of the Prescription Ordinance.

 

Mere occupation, however lengthy, and payment of assessment rates do not establish prescriptive title unless the occupation is proved to have been adverse to or independent of the true owner for the full statutory period.

A claim of prescription must relate to a definite and identifiable portion of land and cannot ordinarily be advanced merely in respect of an abstract undivided share.

Possession commencing with permission cannot become prescriptive without proof of a clear change in the character of possession, evidenced by an overt act hostile to the owner.

 

Treatment of precedent

The judgment is unusually concise and does not expressly cite or discuss any reported precedent by name. It should therefore not be represented as having relied expressly on particular previous cases.

 

Nevertheless, its reasoning is consistent with the following genuine authorities.

Chelliah v. Wijenathan - 54 NLR 337 at 342

Gratiaen J. held that a party invoking section 3 to defeat the ownership of another bears the burden of establishing the starting point from which the alleged prescriptive possession commenced. This directly supports the Supreme Court’s rejection of a claim based merely upon an unexplained period of long possession.

 

Hassan v. Romanishamy - 66 CLW 112

This authority establishes that general statements such as “I possessed the land” are insufficient without evidence of specific acts demonstrating the character of possession. It also holds that payment of rates is not, by itself, proof of possession for section 3, since rates may be paid by a tenant, licensee or other person who does not claim ownership.

 

De Silva v. Commissioner-General of Inland Revenue - 80 NLR 292 at 295–296

Sharvananda J. stated that adverse possession must be proved by clear and unequivocal evidence demonstrating hostility to the real owner and conduct irreconcilable with the owner’s rights. In the absence of hostility or denial of title, possession does not become adverse.

 

Nonis v. Peththa - 73 NLR 1

The Privy Council considered the statutory meaning of adverse possession under section 3, particularly the significance of conduct from which acknowledgment of another person’s right may fairly and naturally be inferred.

 

Fernando v. Wijesooriya - 48 NLR 320 at 325

The Court explained that adverse possession requires physical occupation accompanied by a manifest intention to hold the land against the claims of all others. It is the hostile intention, demonstrated through possession, that distinguishes adverse possession from mere occupation.

 

Seeman v. David - [2000] 3 Sri LR 23 at 26

A person who enters property in a subordinate capacity cannot acquire prescriptive rights merely through a secret change of intention. The subordinate character must be displaced by an overt act indicating adverse possession.

These authorities are supplementary references explaining the jurisprudential foundation of the decision; they were not expressly cited in the six-page judgment under review.

 

Lessons to be learned from the judgment

1. Prescription must be pleaded precisely

A party claiming prescription should identify:

the exact land or defined portion claimed;

the date or approximate period when adverse possession began;

the overt act marking the commencement of hostility;

the manner in which possession was exclusive and independent; and

the acts relied upon throughout the statutory period.

 

A vague assertion of “long possession” is inadequate.

 

2. Trial issues must contain an intelligible legal proposition

An unclear issue framed merely by referring generally to “prescriptive rights” may not place the real controversy before the court. Issues should identify the claimant, the land claimed, the commencement of adverse possession and the statutory foundation of the claim.

 

3. A party cannot safely shift its case on appeal

The defendants’ primary case in the District Court was based on an alternative pedigree. Before the Supreme Court, they abandoned that claim and relied solely upon prescription.

An appellate court cannot remedy the absence of proper pleadings, issues and evidence at the trial merely because a different legal theory is presented on appeal.

 

4. Documentary title has practical evidentiary force

Once a coherent chain of paper title is established, the occupant must explain why that title has been displaced. Physical occupation does not, without more, prevail over documentary ownership.

5. Rates and utility documents are supporting evidence only

Assessment receipts, electricity bills and similar documents may show occupation, but not necessarily ownership or hostility to the true owner. Their legal value depends upon the surrounding evidence.

 

6. A building may be owned separately from the soil

The case illustrates the importance of distinguishing between:

 

ownership of the land;

ownership of a house or other superstructure; and

a right to compensation for improvements.

 

Recognition of a person’s right to a building does not necessarily confer ownership of the soil beneath it.

 

7. Prescription is not a reward for mere inaction

 

The doctrine does not operate simply because an owner failed to institute proceedings immediately. The claimant must prove that the owner’s title was challenged by legally adverse possession throughout the prescribed period.

 

Concise principle

Occupation plus time is not prescription. Prescription requires identified land, a proved starting point, possession adverse to the true owner, continuity for the statutory period, and clear conduct inconsistent with the owner’s title.

 

Produce a cartoon to suit the head note, in the contesting defendants were residing on the property, having constructed a superstructure made of wattle and daub and thatchan roof, and they had failed to raise a specific issue regarding prescription, and were held to be licensees.

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